The Queen v Epiha-Netana - [2009] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND
CA390/2009
[2009] NZCA 583
THE QUEEN
v
SHADAE EPIHA-NETANA
Hearing:23 November 2009

Court:Arnold, Potter and Heath JJ
Counsel:R Glover for Appellant

A M Powell and A C Walker for Crown

Judgment:11 December 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)
[1]        This is an appeal against sentence. Following a jury trial before Judge Erber the appellant was convicted on one count of aggravated robbery (s 235(b) of the Crimes Act 1961). She was sentenced to a term of imprisonment of two years, six months. She appeals on the basis that there is an unjustified disparity between the sentence imposed on her and those imposed on her co-offenders and, in any event, her sentence is manifestly excessive.
Factual background
[2]        On the evening of 31 August 2008 the appellant, then aged 19, and two 14 year old friends approached the victim, a young woman of 16, and her pregnant friend as they were waiting at a bus shelter. The two 14 year olds attacked the victim and brought her to the ground, with the intention of stealing her handbag and its contents. When the victim would not release her handbag, the appellant stepped in and kicked the victim about the face and head until she did release it. The three young women then ran off with the handbag.
[3]        Besides losing her handbag and its contents in the attack (to a total value of around $170), the victim suffered a black eye, facial cuts and swelling and three chipped teeth, including a front tooth. Because of her fear of dentists, the victim had not had the chipped teeth repaired at the time of sentencing. The attack has had a lasting psychological effect on her, in the sense that she has had difficulty sleeping after the attack, is scared to wait at the bus shelter and is wary about being approached by strangers or going out at night, at least without the company of friends.
[4]        At trial both the victim and her friend gave evidence implicating the appellant in the attack. Although she did not give evidence at trial, the appellant had made a statement to the police, in which she claimed that she was an innocent bystander to the attack carried out by her two friends. Her defence was based on that. Obviously the jury rejected her claim.
Sentencing
[5]        The two 14 year old co-offenders were sentenced in the Youth Court to community work, coupled in one case with supervision on conditions.
[6]        In sentencing the appellant Judge Erber referred to the guideline decision in R v Mako [2000] 2 NZLR 170 (CA). In that case the Court noted that the range of conduct that can constitute aggravated robbery is very wide. In addition to the elements of the offence, there is a wide variety of factors which may contribute to, or detract from, the seriousness of the offending.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NZCA 583
Decision Date: 11 December 2009

CaseChat Overview and Summary

In this case, the appellant, Epiha-Netana, was convicted of aggravated robbery and sentenced to two years and six months imprisonment. She appealed on the grounds that there was an unjustified disparity between her sentence and those imposed on her co-offenders, and that her sentence was manifestly excessive. The co-offenders, who were 14 years old, were sentenced in the Youth Court to community work with supervision conditions. The appellant argued that the disparity between her sentence and theirs was too great, and that a sentence of home detention or a shorter term of imprisonment should have been imposed. The court held that the disparity was not unjustifiable and gross, and that the appellant's age, personal circumstances and low risk of re-offending did not justify a different sentence. The court also held that the sentence was not manifestly excessive, given the aggravating features of the offending and the effect of the appellant's actions on the victim. The appeal was dismissed.

This case highlights the different purposes and principles of the Children, Young Persons, and Their Families Act 1989 and the Sentencing Act 2002, and the importance of taking into account the nature of the offending and the offender's personal circumstances when imposing a sentence. The court emphasised that an appellate court will only intervene with a sentence on the ground of disparity if the disparity is unjustifiable and gross, and that a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think something had gone wrong with the administration of justice. The court also noted that the judge was not obliged to accept the assessment of the pre-sentence report writer as to the likelihood of the appellant re-offending, but was entitled to form his own view.

Orders